Dutchess Truck Repair, Inc. v. Boyce
Citation | 2014 N.Y. Slip Op. 05768,991 N.Y.S.2d 639,120 A.D.3d 543 |
Parties | DUTCHESS TRUCK REPAIR, INC., et al., appellants, v. Joe BOYCE, et al., respondents, et al., defendant. |
Decision Date | 13 August 2014 |
Court | New York Supreme Court Appellate Division |
120 A.D.3d 543
991 N.Y.S.2d 639
2014 N.Y. Slip Op. 05768
DUTCHESS TRUCK REPAIR, INC., et al., appellants,
v.
Joe BOYCE, et al., respondents, et al., defendant.
Supreme Court, Appellate Division, Second Department, New York.
Aug. 13, 2014.
[991 N.Y.S.2d 640]
Norman A. Kaplan, Great Neck, N.Y. (Barry Silver of counsel), for appellants.
The Sarcone Law Firm, PLLC, White Plains, N.Y. (Pasquale Sommella and John A. Sarcone III of counsel), for respondents.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.
In an action, inter alia, to recover damages for breach of a commercial lease, the plaintiffs appeal, as limited by their brief, (1) from so much of an order of the Supreme Court, Dutchess County (Pagones, J.), dated December 14, 2011, as denied their motion to strike the answer of the defendants Joe Boyce, Sally Boyce, and Trans Star Enterprises, Inc., pursuant to CPLR 3126, to vacate their default in serving a timely reply to the counterclaim of the defendants Joe Boyce, Sally Boyce, and Trans Star Enterprises, Inc., and to compel those defendants to accept the plaintiffs' reply, and (2) from so much of an order of the same court dated September 21, 2012, as granted those branches of the motion of the defendants Joe Boyce, Sally Boyce, and Trans Star Enterprises, Inc., which were to strike the plaintiffs' note of issue and to dismiss the complaint insofar as asserted against them pursuant to CPLR 3216 for failure to prosecute.
ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.
Where a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed,” the court may, inter alia, strike that party's pleadings or portions thereof (CPLR 3126[3] ). However, “[t]he striking of a party's pleading is a drastic remedy only warranted where there has been a clear showing that the failure to comply with discovery demands was willful and contumacious” (Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d 201, 210, 959 N.Y.S.2d 74; see Silberstein v. Maimonides Med. Ctr., 109 A.D.3d 812, 814, 971 N.Y.S.2d 167; Zakhidov v. Boulevard Tenants Corp., 96 A.D.3d 737, 739, 945 N.Y.S.2d 756; Romeo v. Barrella, 82 A.D.3d 1071, 1075, 921 N.Y.S.2d 83; Howe v. Jeremiah, 51 A.D.3d 975, 858 N.Y.S.2d 788). Because the plaintiffs failed to demonstrate that the conduct of the defendants Joe Boyce and Sally Boyce was willful and contumacious, the Supreme Court properly denied that branch of the plaintiffs' motion which was to strike their answer pursuant to CPLR 3126.
[991 N.Y.S.2d 641]
“Upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default” (CPLR 3012[d]; see EHS Quickstops Corp. v. GRJH, Inc., 112 A.D.3d 577, 578, ...
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